120 and severance

The issue is severability of portions of Article 120. AFCCA holds that the military judge may sever the unconstitutional parts of Article 120, and instruct accordingly.

Applying the severance doctrine to the case at hand, we have no difficulty determining the constitutional infirmity created by the interaction of Article 120(h). Although this appeal specifically addresses abusive sexual contact under Article 120(h), UCMJ, 10 U.S.C. § 920(h), our holding would be applicable to any Article 120 offense in which the government alleges that the victim was substantially incapacitated and the accused intends to raise an affirmative defense of consent and/or mistake of fact as to consent. Article 120(t)(14) and Article 120(t)(16) can be remedied by severing out Article 120(t)(16)’s requirement that the accused prove the affirmative defense, by a preponderance of the evidence, from the remainder of the statute. The accused need only raise some evidence of consent. The military judge must then craft appropriate instructions for the members, informing them that the government has the burden of proving the purported victim did not consent beyond a reasonable doubt. See United States v. Neal, 68 M.J. 289, 304 (C.A.A.F. 2010) (“the military judge has the authority to craft an appropriate instruction ensuring that the burden of proof remains with the government.”). This approach does not invalidate the remainder of the statute as it remains “fully operative as a law.” The government must still prove all elements of the abusive sexual contact charge as well as carry the burden of proving the affirmative defense does not apply[.]

However, does this ignore that a potential consequence of the current Article 120, that once the accused presents and establishes evidence of consent by a preponderance, the members must acquit?